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Case No: A3/1999/0757 CHANF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 21st November 2000
B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE POTTER
and
LORD JUSTICE JONATHAN PARKER
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TWENTY
TWO A PROPERTY INVESTMENTS LIMITED
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Claimant
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and -
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(1)
MESSRS SIMPSON CURTIS (A Firm)
(2) KEITH YOUNG
(3) ROBERT RODICK ACKRILL BREARE
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Defendants
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Alan Steinfeld QC and Stephen Moverley Smith Esquire (instructed by
Herbert Smith, London, for the claimant)
Anthony Temple QC and Francis Tregear Esquire (instructed by Browne
Jacobson Solicitors, Nottingham, for the first defendant)
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Judgment
As Approved by the Court
Crown Copyright ©
Potter LJ:
INTRODUCTION
1. This is an appeal against the judgment and order of Park J dated
21st June 1999, whereby he gave judgment in favour of the claimant
Twenty Two A Property Investments Limited ("22A") for £2,125,600.62 and
costs on 22A's claim for damages for negligence against the first defendant
Simpson Curtis ("SC") as its former solicitors. Park J dismissed SC's
counterclaim for unpaid fees in respect of the transaction in which such
negligence occurred. By this appeal SC seeks an order setting aside the
judgment and dismissing 22A's' claim and awarding SC judgment on their
counter-claim.
2. The claim arises from the collapse of a property transaction in which 22A
was involved.
THE FACTUAL BACKGROUND
3. 22A had an option to purchase a bus depot in Hatfield from Mr Keith Young
and Mr Robert Breare ("Young and Breare") for £1.1 million. In 1989 Young
and Breare had an opportunity to sell the bus depot to Laing Investments
(Bracknell) Limited ("Laing") for £3.1 million. In order for Young and
Breare to be able to sell the bus depot free of encumbrances, it had to procure
22A to give up its option and to obtain the surrender of a lease of the bus
depot, with vacant possession, by the tenant ("the Bus Company").
4. By negotiations which were concluded in August 1989, Young and Breare agreed
in writing to sell the bus depot to Laing for £3.1 million ("the Sale
Agreement"), 22A agreeing to surrender its option for £1.65 million ("the
Option Surrender Agreement"). Both agreements were dated 16th
August 1989. The Bus Company also agreed to surrender its lease.
5. The Sale Agreement (to which 22A was not a party) was, by clause 20,
conditional on Young and Breare satisfying a number of pre-conditions. These
related to an area of the bus depot which was let to Abbey Life Assurance
Company Limited ("Abbey Life") who owned an adjoining building ("Harrier
House"). Abbey Life in turn had sub-let to three tenants, all with rights to
use the existing car park for staff. Young and Breare proposed that Abbey Life
should give up its lease on the existing car park in exchange for a car parking
lease in a different area of the site, an arrangement in which Abbey Life and
its three sub-tenants would participate by four different deeds of variation,
which would be put into operation pursuant to prior court orders under the
Landlord and Tenant Act 1954 approving such deeds. The pre-conditions had to
be satisfied by Young and Breare as soon as reasonably practicable, but in any
event by 26 February 1990, failing which the Sale Agreement automatically
terminated and the deposit paid by Laing was repayable.
6. Under the Option Surrender Agreement, 22A agreed with Young and Breare to
surrender its option and the Bus Company agreed to surrender its lease. It was
a term of that agreement that, if the Sale Agreement was not completed by 28
February 1990, the Option Surrender Agreement could be determined on notice by
either party. However, Clause 11 provided that Young and Breare would use
their reasonable endeavours to procure that the Sale Agreement became
unconditional as soon as reasonably practicable and 22A's benefit from
surrendering its option was dependent on the completion of the Sale Agreement
on or before the final deadline of 26 February 1990 referred to in paragraph 5
above. Completion of the Sale Agreement was in the hands of Young and Breare
and Laing, and, in particular, the responsibility rested upon Clifford Chance
("CC"), the solicitors acting for Young and Breare. The employee of CC
responsible for the transaction was Mr Dun, a Scottish qualified solicitor who
was obtaining an English qualification.
7. Against the background of 22A's lack of control over the process and
deadline by which the Sale Agreement would become unconditional, 22A retained
Mr Wilford of SC to monitor the transaction and protect 22A's interest. In a
letter dated 18 September 1989, 22A stated:
"I write to confirm that KeithYoung is more than happy for you to work closely
with [Chris] Dun to make sure my position is well protected. I would be
obliged therefore if you would keep actively pursuing to see that matters are
progressing as we would expect."
At trial, Mr Wilford accepted that the passage quoted constituted SC's
instructions from 22A so far as SC's monitoring role was concerned. He had
already been in contact with Mr Dun in connection with the negotiation and
exchange of the agreements which had taken place and, his responsibility from
that time on was to secure that the pre-conditions for the sale to Laing were
fulfilled so that completion could take place before the deadline of 26
February 1990.
8. In that respect, everything appeared to proceed smoothly at first instance,
neither Abbey Life nor any of the sub-tenants having any objection in principle
to the exchange of car parking areas. Mr Wilford and Mr Dun were in regular
contact and Mr Wilford regularly reported back to Mr Stephenson of 22A. On 31
October 1989 he reported that CC were `hopeful of having agreed documentation
fairly shortly'. However, despite the willingness of the lay participants to
agree the revised car parking arrangements, the negotiation of the terms of the
formal deeds of variation became bogged down in the hands of the solicitors
involved.
9. On 7 December 1989 Mr Dun wrote to Mr Wilford expressing optimism that they
would still be in a position to complete on 2 January 1990 as had for some time
been envisaged. However, matters dragged on in relation to certain matters of
detail. Completion did not occur on 2 January 1990; nor upon 29 January 1990
the next target date which it was anticipated would be achieved. Park J,
having reviewed the position as it stood in February stated as follows:
"The only matter of any substance which was outstanding was arranging for the
three sub-tenants to execute the agreed deeds of variation and for the executed
deeds to be in the hands of the solicitors who would be involved in the formal
completion. By the week beginning 19 February, the achievement of completion
was little if anything more than a matter of organisation and
co-ordination."
10. Unfortunately, as between the solicitors directly concerned, there appears
to have been insufficient sense of urgency. The reason for this principally
reposes in the positive finding of the judge that Mr Dun of CC either never
realised that 26th February 1990 was a `drop-dead' date for
completion or that, if he had at one time realised that, he had certainly
forgotten it by the middle of February. He was proceeding on the basis that it
did not matter if the contractual completion date was missed. The judge could
not be sure whether the solicitors to Abbey Life knew; however, it appeared
that the sub-tenants' solicitors were not aware of the urgency. This was clear
from the statement in evidence of the solicitor to one sub-tenant, whose deed
of variation was not executed and in place by February, that, if she had known
that 26 February was the deadline for completion, she would have done her
utmost to ensure that the deed was available in time. Against that background,
on Tuesday 20 February Mr Dun recorded in an internal memorandum to a
colleague:
"I would anticipate that should no further unforeseen problems arise we should
be in a position to complete the sale within, say, the next two weeks"
That memorandum (not of course known to Mr Wilford) makes crystal clear the
failure of Mr Dun to appreciate the urgency of the position.
11. That was the week prior to the deadline date of Monday 26th
February. As to Mr Wilford's actions in that week, the judge found that, so
far as the evidence showed he did nothing relevant to the transaction on Monday
19th, Tuesday 20th or Wednesday 21st. On Thursday 22nd, however, Mr Dun
telephoned him, sending a fax in confirmation shortly before 5 p.m. which, so
far as relevant, read as follows:
"Further to our telephone conversation this afternoon, I confirm that Carter
Lemon [Laing's solicitors] have advised that we should work towards completion
on 26 February. I enclose for your approval a draft completion statement
brought down to the above date."
I shall call that message "the Thursday fax".
12. As the judge noted, Friday 23rd February was the last day
available to get everything ready if there was to be a smooth completion
without last-minute `panics' on Monday 26th February. However, so
far as the documents and evidence revealed, very little happened. In
particular, Mr Dun made no administrative arrangements for a completion meeting
to take place on Monday, or for the necessary solicitors to be available for
completion to take place by telephone. So far as Mr Wilford's actions were
concerned, it appears from SC's telephone records that he made an outgoing
telephone call in connection with the matter, lasting twenty-five minutes ("the
Friday telephone call"). However, he had no personal recollection of it. He
stated that he thought it was probably to Mr Dun, but if that was so, he was
unable to say what was said. He made no attendance note of the call and,
although some attendance notes of Mr Dun were in evidence, none related to such
a call.
13. On Monday 26th February, as the judge found, Mr Dun was
`moderately active' in connection with the transaction, but he did not seek to
complete that day because an administrative snag existed in that one of the
three deeds of variation required to fulfil the pre-conditions was still at the
offices in Hatfield of the sub-tenant concerned and had not been transmitted to
its solicitors in central London for them to pass on to the solicitors who
would perform the completion. At 9.55 a.m., Mr Dun telephoned Mr Douglas at
Carter Lemon (for Laing) to tell him the deed had not yet been returned. Mr
Douglas said that he was expecting to receive the completion money shortly from
Laing, only for Mr Dun to tell him that Laing should hold on to the money `as
he did not think he would be completing today and they should not therefore
transmit further money until tomorrow'. Mr Dun then proceeded on that basis,
arranging for a motor cycle courier to collect the outstanding deed the
following morning, for completion to take place in London. He also dealt with
a hiccup concerning the presence of gypsies in the new car parking area.
However, he sorted it out during the course of the day and the judge held that
it would not have prevented completion if the other arrangements had been in
place. So far as the latter were concerned, the judge also held that, if Mr
Dun had had in mind the urgency of the situation and the necessity to complete
on Monday, he could have achieved it. Having observed that Mr Dun had all the
resources of Clifford Chance behind him, the judge stated:
"On the 26th itself, Mr Dun did not realise that it was urgent to
get the deed couriered to London on that day, so he arranged to have it
couriered the next morning. If he had realised that it was urgent he would
have arranged for it to be done the same day. Indeed, I believe that until
quite some time in to the afternoon of the 26th he would probably
have still have been in time to get this done so that completion could take
place. There might have been an element of `panic stations', but it could have
been done. And if he had understood the correct position, or had had the
correct position drawn to his attention on Thursday or Friday of the previous
week, there would have been no panic stations; the deed would have been
collected from Softwright in plenty of time and completion would have taken
place smoothly and without difficulty, probably on the morning of the
26th."
14. So far as Mr Wilford's activity on the 26th was concerned, he
was in his office in Leeds and spent most of the day working on other matters,
while expecting to be telephoned by Mr Dun so that the two of them could
complete by telephone the aspects of the entire transaction which required
completion between their respective clients. As time went by without such a
call being received, he started to feel concerned. He said that he made
telephone calls to Clifford Chance and asked for Mr Dun. He was unable to
speak to him and left messages for him to call back. However, Mr Dun did not
do so. Mr Wilford did not take the matter further, but, at the end of the
working day, he went home having left a telephone message with Mr Stephenson's
secretary that completion had not taken place that day. In the evening he
spoke personally to Mr Stephenson telling him that completion would take place
on the 27th.
15. Unfortunately, that was not so because, on 27th February, Carter
Lemon on behalf of Laing wrote saying that the sale contract was terminated
and, in addition, gave notice of recission. Notice quickly followed from Young
and Breare determining the Option-Surrender Agreement. Because of a
substantial fall in the property market over the preceding months, the deal
between Young and Breare and Laing had to be negotiated at a lower price. 22A
only received £668,000 in respect of its option, instead of the £1.65
million it would otherwise have received, thus sustaining a loss of some
£982,000, which made up the principal element of the judge's award of
damages against SC.
THE JUDGMENT BELOW
16. So far as the scope of CC`s retainer was concerned, the judge stated the
obligation of Mr Wilford in this way:
".. in my judgment the retainer required Simpson Curtis to do more than sit
back and leave the matter to Clifford Chance. Mr Young had agreed that Mr
Wilford could work with Mr Dun, but I consider that Mr Wilford had to keep
himself informed at all times of what Mr Dun was doing and proposing to do, in
case it appeared that something might be at risk of going wrong. If it did
appear that something might be going wrong, Mr Wilford had to be prepared to
influence Mr Dun and exert pressure on him to put it right. He would not have
been justified in refraining from making his views known because of an
apprehension that (to quote the Skeleton Argument of Mr Temple QC and Mr
Tregear for Simpson Curtis) Clifford Chance would have regarded a reminder from
him as `mildly offensive'. In any case Mr Dun had been told by his clients
that Mr Wilford would be taking an interest in the matter as it progressed, Mr
Wilford and Mr Dun were on good terms with each other, and I am sure that Mr
Wilford (who appeared in the witness box to be a most courteous person) was
well capable of avoiding the giving of offence whilst still liaising in a
positive way with Mr Dun."
17. Having defined Mr Wilford's obligations in that way, the judge found that
he had fallen short of what was required. In analysing the nature and extent
of Mr Wilford's activities to this end, the key findings of Park J, to which Mr
Temple has addressed his principal criticisms on this appeal, were as
follows:
"E6. In my judgment, if Mr Wilford had properly discharged Simpson Curtis's
duty to Twenty Two A, he would have found out that Mr Dun did not realise that
the 26th was a drop-dead date, and would have corrected Mr Dun's
error. Even if he did not specifically discover that Mr Dun was proceeding
under a misapprehension, he ought at least to have enquired of him what
arrangements he had made with a view to getting completion through in time. If
he had done that, it seems to me virtually inevitable that Mr Dun would have
woken up to the correct position. I cannot imagine that a conversation on the
arrangements for completion could have gone on between them without the
critical importance of the 26th coming up at some stage. Once it
did, I think that it is obvious that Mr Dun would have revised his plans so as
to ensure that the drop-dead date was not missed .... .
E8. In the week beginning 19 February, the evidence indicates that Mr Wilford
did nothing in the matter until Thursday 22nd. The deadline for
completion was getting critically close, and in my judgment his duty to `make
sure that [22A's] position is well protected' and to `keep actively pursuing to
see that matters are progressing as we would expect' meant that he should have
been in contact with Mr Dun to check that Mr Dun had matters in hand to get the
transaction through by the 26th. For the reasons which I have given
I believe that, if he had done that, Mr Dun would have realised the correct
position and would have ensured that the completion did take place.
E9. Even on Thursday 22 February, Mr Wilford did nothing on his own
initiative. He received a telephone call and a fax from Mr Dun telling him
that Mr Dun was `working towards' completion on the 26th. Mr Temple
says that this message, taken with the accompanying completion statement made
up to the 26th, was enough to satisfy Mr Wilford that there would be
no problem and the completion would take place in time. I do not agree. On
the contrary, I agree with Mr Steinfeld that the expression `working towards'
should have set alarm bells ringing, and should have been enough to prompt a
tactful observation from Mr Wilford to the effect that, if they `worked
towards' completion on the 26th but did not achieve it, the whole transaction
would collapse. In my opinion an observation of that sort, even by itself
would have been enough to avert the disaster which in fact occurred. It is
clear, however, that Mr Wilford made no such observation. He took note of what
Mr Dun said and does not appear to have given any particular response to it.
E10. I move to Friday 23 February. ... I consider that Mr Wilford should, in
the interests of his client, 22A, have been on the telephone to Mr Dun to check
that he was indeed doing it. The only evidence that exists is that Mr Wilford
made a twenty-five minutes outgoing telephone call that day, but he cannot
remember who it was to, still less what was said in he course of it. If it was
not to Mr Dun, it ought to have been. If it was, to Mr Dun, it seems obvious
that in the course of a twenty-five minutes' conversation Mr Wilford failed to
discover Mr Dun's potentially disastrous mistake, and also failed to say
anything which caused Mr Dun to realise his mistake for himself. Either way, I
can only conclude that what Mr Wilford did or omitted to do on the Friday
amounted to a failure on that day to fulfil Simpson Curtis's duties to 22A."
18. So far as Monday 26th February was concerned, the judge raised a
question mark as to the accuracy (though not the sincerity) of Mr Wilford's
evidence as to the unsuccessful series of calls which he said he made on
Monday, in the light of two factors. First, there was no file note made by Mr
Wilford to this effect; second, other documents in the case showed that Mr Dun
was in his office that day and answered the telephone to other callers. The
judge did not find it necessary to make a positive finding of fact in that
respect. He simply put the matter in this way:
"E13. Assuming, however, that Mr Wilford's sincere recollection that he did
try to speak to Mr Dun is correct, I have to say that what he did was
inadequate. A major transaction was on the brink of collapsing, and if it did
collapse there would be a considerable loss to Mr Wilford's client. It was
fair enough for him simply to leave a message for Mr Dun to call him back the
first time when he could not get through to Mr Dun himself perhaps the same
might have applied the second time, although it would in my opinion have
depended on the time of day. But there must have come a time when Mr Wilford
ought to have pressed the matter further on the telephone. Presumably Mr Dun
had a secretary. Mr Wilford could have asked to speak to her and impressed on
her the imperative urgency of the matter. Mr Dun had colleagues and superiors
who worked in the same department at Clifford Chance as he did. One of them
had looked after the matter a month or so earlier in Mr Dun's absence on
holiday, so Mr Wilford knew him. Mr Wilford could have asked to speak to him
or to another of Mr Dun's colleagues. With a big firm like Clifford Chance I
am sure that if Mr Wilford had been as determined as the circumstances
warranted he could have had an effective conversation with someone at the firm,
and that even at the eleventh hour the transaction might have been saved.
E14. Alternatively, when Mr Wilford could not get through to Mr Dun he could
have telephoned the solicitor who was acting for Abbey Life and co-ordinating
the collection of the Deeds of Variation from the sub-tenants. Mr Wilford had
spoken to that solicitor on a number of occasions in the past. A call to him
would have elicited that Mr Dun was planning to complete one day too late, and
might just have given Mr Wilford the time and the incentive to bring about the
rescue of the transaction before it was too late.
E15. Mr Wilford did not do any of the things that he might have done when
he could not get a reply from Mr Dun ... . By itself that might not have been
enough to win the case for 22A. If the action against Simpson Curtis depended
solely on the last day, I might not have been willing to find that Mr Wilford's
failures on that day were sufficiently causative of 22A's loss to justify
imposing liability on his firm. They were, however, wholly in line with what I
regret to say I consider to have been deficiencies on his part through the
previous week. They reinforce me in my view that I must decide this case in
favour of 22A and against Simpson Curtis."
THE GROUNDS OF APPEAL
19. The grounds of appeal, argued at length and in detail by Mr Temple before
us, maybe summarised in this way. First, he has submitted that the judge erred
in his determination of the scope of SC's retainer in holding that the retainer
included obligations on the part of SC to keep itself informed as to what CC
was doing in case something might be at risk of going wrong and, whether
specifically or by implication, to ensure that CC had not forgotten that
26th February was a final deadline. He has argued that, the judge
erred in not taking into account the fact that SC's role was no more than a
`monitoring' role and that SC was entitled to perform its obligations on the
basis that CC were a highly skilled and reputable firm of solicitors.
20. In my view, this ground of appeal may swiftly be disposed of. The terms of
the retainer were clear. It anticipated, even if it did not require in terms,
that Mr Wilford should work closely with Mr Dun `to make sure [22A's]
position is well protected'. It specifically required Mr Wilford actively
to pursue CC `to see that matters are progressing as we would expect'.
To say that the role of CC was no more than a monitoring role is simply to beg
the question of what was required to be done by SC. Plainly SC's retainer
required it to do more than sit back and leave the matter to CC. I agree with
the judge that Mr Wilford had to keep himself informed at all times of what CC
were doing and proposed to do in case it should appear that something might be
at risk of going wrong. The judge was also right to say, as he did, that Mr
Wilford should have been prepared to influence Mr Dun and exert pressure on him
if matters did not appear to be progressing as they should; and that Mr Wilford
would not be justified in refraining from making his views known simply through
an apprehension that CC would have regarded a reminder as to the deadline as an
uncalled for interference in CC's leading role. In particular, against a
background of mounting delay and the fast approaching deadline, Mr Wilford was
under a duty to ascertain the position in sufficient detail to ensure that all
was on course to achieve the 26th February deadline.
21. Second, Mr Temple has submitted that the judge erred in determining that SC
was in breach of duty by its failure to discover that CC had forgotten that
26th February 1990 was a `drop-dead' date. In this context, two
separate but related matters have been urged upon us. Mr Temple has challenged
the finding of the judge which was plainly critical to his decision, that the
Thursday fax from Mr Dun to Mr Wilford couched in terms of `working towards'
completion on 26th February should have set alarm bells ringing (see
E9 at paragraph 17 above). Mr Temple has submitted that, bearing in mind the
status of CC and its involvement as lead solicitor in the transaction, coupled
with the enclosure of a completion statement made up to 26th
February 1990, the Thursday fax was, in the context, sufficient to set at rest
any doubts concerning the achievement of the deadline which Mr Wilford might
otherwise have entertained. I do not accept that submission. The matter is
largely one of impression, but seems to me clear nonetheless. The text of the
letter indicated an intention to achieve completion on that date, but it did
not confirm that the vital importance of completing on that day was
appreciated; quite the reverse. The fact that a completion statement for that
date was also enclosed for approval was insufficient for that purpose. While
the enclosure was consistent with the text of the letter, it did nothing to
remove the need for enquiry.
22. Mr Temple has also submitted that, having held that Mr Wilford was himself
aware that 26th February was a `drop-dead' date, and having noted
the making of the Friday telephone call (which had lasted twenty-five minutes),
the judge should have inferred that during such conversation Mr Dun said
sufficient as to the state of play and the arrangements which he had put in
place to reassure Mr Wilford that completion would be achieved on
26th February. Otherwise, as Mr Temple submitted, it was
inconceivable that Mr Wilford would not have informed Mr Dun that completion
must take place on that date, if necessary by undertakings over the telephone.
23. That submission is part of a general criticism by Mr Temple that the judge
was too ready to draw inferences of fact to the disadvantage of Mr Wilford in
the face of his understandable difficulties of recollection as to events and
conversations some ten years previously. In this respect Mr Temple placed
considerable emphasis on the findings of the judge (a) that Mr Wilford was an
`honest and conscientious witness', and (b) that he was a `careful and
competent solicitor'. Mr Temple submitted that, as such, the judge should have
inferred that Mr Wilford acted carefully at all times unless the contrary was
positively shown.
24. This does not seem to me to be a valid criticism. It does not reflect the
judge's view that something of a question mark existed over the accuracy
(though not the honesty) of Mr Wilford as a witness. The judge, aware that the
picture, as he found it, was one of an almost unaccountable failure on Mr
Wilford's part to take positive steps to ensure the completion took place
against a `drop-dead' date of 26th February, entertained the
explanation explored by Mr Steinfeld in cross-examination of Mr Wilford, namely
that he too was unaware, or had forgotten, that the 26th was in fact
a `drop-dead' date. The judge said:
"I accept implicitly that Mr Wilford believes that he appreciated at all times
that the 26th was a drop-dead date, but I confess that I wonder
whether Mr Steinfeld just might be right and whether Mr Wilford might be
mistaken about this. It all happened over nine years ago, and after that
length of time any witness, however honest and conscientious (and Mr Wilford
was an absolutely honest and conscientious witness) must have a lot of
difficulty in distinguishing between what he did understand then and what he
has come over the years to be convinced that he must have understood then. If
Mr Wilford was under the same mistaken belief as Mr Dun, it would, I fear,
still have been negligence on his part, but it would explain what to me was an
unaccountable lack of positive action on the part of someone whom I do not
doubt to be a careful and competent solicitor. However that may be, Mr Wilford
believes that he did at all times know what the correct contractual position
was, and henceforth I proceed on the basis that that was indeed the case."
25. In that passage it is plain that the judge referred to the honesty of Mr
Wilford in the context of questioning his accuracy, and he referred to Mr
Wilford's care and competence in general, by way of contrast with his apparent
lack of positive action in the instant case. Nonetheless, having done so, he
concluded that he should consider the actions of Mr Wilford on the Thursday and
Friday on the basis that Mr Wilford was indeed aware of the `drop-dead' date,
and on that basis made the findings and inferences of fact set out at E6-E10 of
his judgment (see paragraph 17 above).
26. Mr Temple has been quite unable to persuade me that the judge was in error
either in the careful examination which he gave to the evidence or the findings
which he made, whether as to the effect of the Thursday fax (namely to put Mr
Wilford on enquiry) or the Friday telephone call (if it was made). As to the
latter, whatever may have been said, it was self-evident that nothing was said
as to the `drop-dead' nature of completion towards which Mr Dun had said he
working on Monday 26th February. Had it been, it is inexplicable
that Mr Dun could have been content to make no administrative arrangements on
Friday for effecting completion and, by 9.55 am on Monday, to inform Curtis
Lemon that they would not be completing that day.
27. In any event, as it seems to me, if SC was to place reliance upon the
Friday telephone call as amounting to fulfilment of its instructions, the
burden of proving the materiality and contents of that call lay upon SC. This,
Mr Wilford failed to do. In evidence, he speculated that Mr Dun was the most
likely recipient of that call; however in the absence of an attendance note, he
was unable to say positively that was so, let alone to recall what was
discussed and in what terms. In such circumstances, I do not consider that the
conclusion of the judge can be faulted.
CONCLUSION
28. No challenge has been raised on this appeal to the findings of the judge as
to Mr Dun's activities on Monday 26th February, or that, had Mr
Wilford drawn to Mr Dun's attention on Thursday or on Friday morning, that 26th
February was the `drop-dead' date, the transaction would have been completed.
The appeal has been directed entirely to the judge's findings of negligence
and/or breach of retainer on the part of SC, no issue as to causation
separately arising. That being so, for the reasons I have set out above, I
would uphold the judge's findings and dismiss the appeal.
Lord Justice Jonathan Parker: I agree.
Lord Justice Kennedy I also agree.
ORDER: Appeal dismissed with costs to be assessed if not agreed.
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